This opinion is subject to revision before publication 

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ 

UNITED STATES 

Appellee 

v. 

Brian G. SHORT, Sergeant 

United States Army, Appellant 

No. 17-0187 

Crim. App. No. 20150320 

Argued October 24, 2017 —Decided January 5, 2018 

Military Judge: John T. Rothwell 

For Appellant: Captain Zachary A. Szilagyi (argued); 

Colonel Mary J. Bradley, Lieutenant Colonel Christopher 

D. Carrier, Captain Ryan T. Yoder, and Captain Bryan A. 

Osterhage (on brief); Lieutenant Colonel Melissa R. 

Covolesky and Major Julie L. Borchers. 

For Appellee: Captain Kendra J. Holtmann Harris (argued); Colonel Mark H. Sydenham, Lieutenant Colonel A. 

G. Courie III, and Major Melissa Dasgupta Smith (on 

brief); Major Virginia H. Tinsley. 

Chief Judge STUCKY delivered the opinion of the 

Court, in which Judge RYAN, and Senior Judge 

ERDMANN, joined. Judge OHLSON filed a separate 

dissenting opinion, in which Judge SPARKS joined. 

_______________

Chief Judge STUCKY delivered the opinion of the Court. 

We granted review to consider whether the trial counsel 

committed prosecutorial misconduct for improper argument 

after eliciting inadmissible testimony. However, the military 

judge properly sustained defense objections and took 

significant remedial action. Therefore, the proper focus of 

our review is on whether the military judge abused his 

discretion by failing to grant Appellant’s three motions for a 

mistrial. We conclude that he did not. We therefore affirm 

the judgment of the United States Army Court of Criminal 

Appeals (CCA). 
United States v. Short, No. 17-0187/AR 

Opinion of the Court 

2 

I. Procedural History 

Appellant faced a number of domestic violence charges. A 

general court-martial comprised of members acquitted him 

of the most serious charges—forcible sodomy and aggravated 

assault (Articles 125 and 128, Uniform Code of Military Justice, UCMJ, 10 U.S.C. §§ 925, 928 (2012))—but convicted 

him, contrary to his pleas, of three specifications of assault 

consummated by a battery and one specification of simple 

assault in violation of Article 128, UCMJ. Consistent with 

Appellant’s explicit request, the panel sentenced him to a 

bad-conduct discharge. The convening authority approved 

the adjudged sentence, and the CCA affirmed the findings 

and sentence on appeal. United States v. Short, No. ARMY 

20150320, 2016 CCA LEXIS 670, at *9, 2016 WL 6875884, 

at *3 (A. Ct. Crim. App. Nov. 17, 2016) (unpublished). 

II. Background 

Appellant and NS were joined in a turbulent marriage, 

rife with fighting and plagued by accusations of domestic violence. At trial, NS testified that Appellant forced her to perform oral sex, threw a shampoo bottle at her, pulled and 

dragged her by her hair, shoved her head into the hood of a 

car, struck her legs, and struck her in the head and face. 

In an effort to show that these charged offenses did not 

happen in isolation, but rather contributed to a pattern of 

abuse that lasted for years, the Government sought to introduce evidence of prior incidents of verbal and physical 

abuse, and of Appellant’s exercise of financial control over 

NS, under Military Rule of Evidence (M.R.E.) 404(b). The 

military judge granted the Government’s M.R.E. 404(b) motion in part and denied it in part, making specific rulings as 

to what uncharged misconduct would be admissible and 

what would be excluded. Evidence objected to at trial and 

excluded pursuant to the military judge’s M.R.E. 404(b) ruling included statements by NS concerning the general state 

of her marriage and Appellant’s actions immediately following the charged offenses of forcible sodomy, the dragging of 

NS by her hair, and the striking of NS on her legs. 

During the merits phase of the trial, Appellant lodged 

numerous objections to the questions posed by the trial 

counsel, including multiple objections on M.R.E. 404(b) 
United States v. Short, No. 17-0187/AR 

Opinion of the Court 

3 

grounds alone. To combat the improper testimony, the military judge took strong and repeated corrective action, employing varied measures to clarify and enforce his M.R.E. 

404(b) ruling. For example, after the third sustained objection on M.R.E. 404(b) grounds, the military judge sua sponte

called an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), 

session to order, where he cautioned the Government 

against eliciting testimony that ran contrary to the court’s 

M.R.E. 404(b) ruling. He later held three additional Article 

39(a), UCMJ, sessions at the request of defense counsel, personally cautioned NS against straying into impermissible 

ground, and rebuked trial counsel with a “last warning.” 

Most importantly, the military judge also issued several 

curative instructions which addressed the majority of Appellant’s sustained objections regarding M.R.E. 404(b). At one 

point, he even allowed Appellant to propose appropriate language for a curative instruction and based his instruction on 

that language. 

On more than one occasion, the military judge asked if 

the members would abide by his curative instructions, and 

the panel responded affirmatively through nonverbal cues 

such as nods and raised hands. During one Article 39(a), 

UCMJ, session, the military judge acknowledged that he received “nods up and down from everyone” showing they understood his curative instruction. Not content with the military judge’s remedial measures, however, defense counsel 

moved for a mistrial on three separate occasions. The military judge denied each of these motions. 

Although not objected to at trial, trial counsel also advanced certain arguments Appellant now deems prejudicial. 

For example, when discussing NS’s credibility and demeanor 

on the stand, trial counsel noted that Appellant “stared at 

her for the entire afternoon while she gave that testimony.” 

Trial counsel further commented on NS’s difficulties in recounting her ordeal, at one point asking the panel to 

“[i]magine how uncomfortable and how terrifying it was to 

sit on that stand” and later imploring members to imagine 

how difficult it was for her to testify. 

After the court was closed for deliberations on findings, 

the defense moved for a finding of not guilty on one of the 
United States v. Short, No. 17-0187/AR 

Opinion of the Court 

4 

assault consummated by a battery specifications, arguing 

that the Government failed to establish that any items Appellant was alleged to have thrown at the purported victim 

while she was cowering in the bathtub actually hit her. The 

military judge ruled that there was no evidence that the alleged victim was struck but there was sufficient evidence for 

the members to find Appellant guilty of simple assault. Instead of interrupting the court’s deliberations and so advising the members, the military judge waited until the members returned with a verdict of guilty. Then, the military 

judge instructed the members on the lesser included offense 

of simple assault and had the members return to deliberate 

on that offense. 

III. The Law 

A military judge “may, as a matter of discretion, declare 

a mistrial when such action is manifestly necessary in the 

interest of justice because of circumstances arising during 

the proceedings which cast substantial doubt upon the fairness of the proceedings.” Rule for Courts-Martial (R.C.M.) 

915(a). The Discussion to R.C.M. 915(a) cautions that “[t]he 

power to grant a mistrial should be used with great caution, 

under urgent circumstances, and for plain and obvious reasons,” including times “when inadmissible matters so prejudicial that a curative instruction would be inadequate are 

brought to the attention of the members.” 

Accordingly, this Court has held that “a mistrial is an 

unusual and disfavored remedy. It should be applied only as 

a last resort to protect the guarantee for a fair trial,” United 

States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003), or “where the 

military judge must intervene to prevent a miscarriage of 

justice.” United States v. McFadden, 74 M.J. 87, 89 (C.A.A.F. 

2015) (internal quotation marks omitted) (quoting United 

States v. Vazquez, 72 M.J. 13, 19 n.5 (C.A.A.F. 2013)). “Because of the extraordinary nature of a mistrial, military 

judges should explore the option of taking other remedial 

action, such as giving curative instructions.” United States v. 

Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009). 

Absent clear evidence of an abuse of discretion, this 

Court will not reverse a military judge’s determination on a 

motion for mistrial. McFadden, 74 M.J. at 90. “In determin-
United States v. Short, No. 17-0187/AR 

Opinion of the Court 

5 

ing whether the military judge abused his discretion by not 

granting a mistrial, we look to the actual grounds litigated 

at trial.” Id. The challenge is to assess “the probable impact 

of the inadmissible evidence upon the court members.” Diaz, 

59 M.J. at 91 (internal quotation marks omitted) (citation 

omitted). That “judgment is rooted in a simple ‘tolerable’ 

risk assessment that the members would be able to put 

aside the inadmissible evidence.” Id. (citation omitted). 

IV. Discussion 

By Appellant’s count, the Government elicited forbidden 

testimony in violation of the military judge’s rulings, the 

Military Rules of Evidence, and the Rules for Courts-Martial 

approximately forty times during the trial. Of those violations, several ran afoul of the military judge’s M.R.E. 404(b) 

ruling. In addition to trial counsel’s blatant disregard for the 

military judge’s M.R.E. 404(b) ruling, Appellant also contends that trial counsel engaged in improper argument by: 

(1) inviting the panel to draw negative inferences by commenting on Appellant’s behavior and presence during trial; 

and (2) advancing “Golden Rule” arguments that asked the 

members to place themselves in the shoes of the victim. 

While we acknowledge that trial counsel’s conduct left much 

to be desired, Appellant simply cannot show that, in light of 

the military judge’s curative instructions, the members 

would not be able to put aside the inadmissible evidence. 

Appellant also cannot show that he was prejudiced by trial 

counsel’s arguments. 

Here, Appellant argues that the case against him was 

not strong, pointing to the fact that the Government proffered no corroborating eyewitness testimony or physical evidence. While it is true that this case relied largely on unsupported testimonial evidence, the mixed findings, 

including several acquittals and convictions based on lesser 

included offenses, indicate the court members were capable 

of and did put aside the inadmissible evidence, and Appellant suffered no prejudice. See United States v. Sewell, 76 

M.J. 14, 19 (C.A.A.F. 2017) (“[t]he panel’s mixed findings 

further reassure us that the members weighed the evidence 

at trial and independently assessed Appellant’s guilt without regard to trial counsel’s arguments”); United States v.

Hornback, 73 M.J. 155, 161 (C.A.A.F. 2014) (“the fact that 
United States v. Short, No. 17-0187/AR 

Opinion of the Court 

6 

the panel acquitted Appellant of other, weaker drug charges 

indicates that it took the military judge’s instructions to disregard impermissible character evidence seriously”). Ultimately, Appellant was convicted on only four out of eight 

specifications, indicating “the members were able to weigh 

the evidence offered at trial and make an independent assessment of Appellant’s guilt or innocence with regard to 

each separate specification.” United States v. Pabelona, 76 

M.J. 9, 12 (C.A.A.F. 2017). Contrary to Appellant’s claim 

that the evidence was weak and there was no logic to the 

panel’s findings, the record indicates the panel engaged in a 

careful, deliberative process based on the evidence alone. 

“We presume, absent contrary indications, that the panel 

followed the military judge’s instructions” with regard to the 

improper testimony and trial counsel’s arguments.1 Sewell, 

76 M.J. at 19. Trial counsel’s conduct was not so prejudicial 

that the curative instructions were inadequate, and there is 

simply “no evidence here that the members failed to comply 

with the military judge’s [curative] instructions” when convicting Appellant. Hornback, 73 M.J. at 161. 

We disagree with any suggestion that the military 

judge’s finding of not guilty regarding the assault consummated by a battery via the shampoo bottle vitiates our conclusion that the court members were able to follow the military judge’s curative instructions and set aside the 

inadmissible evidence. The military judge’s instructions explicitly allowed members to draw reasonable inferences from 

the evidence and testimony presented. NS testified that Appellant threw items at her at close range while she crouched 

in the shower, covering her head in an attempt to protect 

herself. From this testimony, panel members could reasonably have inferred that Appellant committed an assault consummated by a battery. While the military judge himself in-

 1 While the military judge did not issue a limiting instruction 

sua sponte with regard to the allegedly improper arguments in 

closing, he did give a generic instruction reminding the members 

that “the arguments of counsel are not evidence .... [Members] 

must base the determination of the issues in the case on the evidence as [they] remember it and apply the law as [the military 

judge] instruct[ed them].” 
United States v. Short, No. 17-0187/AR 

Opinion of the Court 

7 

terpreted the evidence otherwise, there is no evidence that 

the panel failed to understand and follow his instructions. 

With regard to the allegedly improper arguments Appellant now challenges, we note that the perceived errors were 

so slight that both defense counsel and the military judge 

failed to recognize them, indicating that neither saw the 

need for remedial measures at all. 

Furthermore, we note that the panel imposed a very lenient sentence. The panel sentenced Appellant, consistent 

with his explicit request, to a bad-conduct discharge and adjudged no other punishment. Considering his maximum possible sentence for the offenses of which he was charged included a dishonorable discharge, confinement for life 

without eligibility for parole, and forfeitures of all pay and 

allowances, Manual for Courts-Martial, United States pt. IV, 

¶ 51.e.(1) (2012 ed.) (MCM), it is difficult for us to say that 

Appellant suffered prejudice when he was only convicted of 

four assaults and his sole punishment consisted of his requested outcome—a bad-conduct discharge. 

In the absence of any prejudice, we cannot say that the 

military judge abused his discretion in declining to declare a 

mistrial. On the contrary, the military judge took action early and often to combat perceived abuses and minimize any 

potential prejudice. Given the measures undertaken by the 

military judge, we conclude that he did all that was necessary to “protect the guarantee of a fair trial.” Diaz, 59 M.J. 

at 90. 

In light of this Court’s longstanding view of mistrials as 

an “extraordinary” remedy and the directive that military 

judges explore other remedial action first, Ashby, 68 M.J. at 

122, we conclude that the military judge was not required to 

declare a mistrial here. This is not a case where “inadmissible matters so prejudicial that a curative instruction would 

be inadequate are brought to the attention of members.” 

R.C.M. 915(a) Discussion. Instead, the danger of unfair 

prejudice from improper testimony and trial counsel’s arguments was slight, as borne out by the mixed findings and 

lenient sentence. As there is no “clear evidence of an abuse 

of discretion” in denying Appellant’s motions for a mistrial 

or failing to sua sponte declare one, we will not disturb the 
United States v. Short, No. 17-0187/AR 

Opinion of the Court 

8 

military judge’s decision. McFadden, 74 M.J. at 90 (internal 

quotation marks omitted) (citation omitted). 

V. Judgment 

The judgment of the United States Army Court of Criminal Appeals is affirmed. 
United States v. Short, No. 17-0187/AR 

Judge OHLSON, with whom Judge SPARKS joins, 

dissenting. 

To put this case into its proper perspective, a number of 

points need to be highlighted. 

First, during the Government’s direct and redirect examination of the victim in this case: 

 the military judge felt compelled to sustain objections by the defense—or the two trial counsel felt 

compelled to withdraw their questions—twentythree times; 

 the military judge needed to provide curative instructions to the panel members six times; 

 trial defense counsel moved for a mistrial three

times; and, 

 throughout the trial, the military judge had to 

convene Article 39(a), Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 839(a) (2012), sessions sixteen times—half of them just to address 

trial counsel’s violation of the military judge’s 

Military Rule of Evidence (M.R.E.) 404(b) ruling.1 

Second, prior to trial the military judge made a detailed 

ruling on what uncharged misconduct was admissible and 

what was inadmissible. And yet, the day before trial, Government counsel provided notice of their intent to admit 

much of the same evidence that the military judge already 

had ruled was inadmissible. After noting that four of the five 

paragraphs violated his earlier M.R.E. 404(b) ruling, the 

military judge admonished trial counsel to comply with the 

ruling. Nonetheless, as can be seen below, trial counsel repeatedly failed to do so. 

For example, during the court-martial the military judge 

sua sponte convened an Article 39(a), UCMJ, session after 

trial counsel asked multiple questions that led to sustained 

objections. The military judge reminded trial counsel that 

they were asking questions that were contrary to his earlier 

 1 One of those Article 39(a), UCMJ, sessions began with an 

apparently exasperated military judge declaring: “Everybody back 

in my chambers!” 
United States v. Short, No. 17-0187/AR 

Judge OHLSON, Dissenting 

2 

M.R.E. 404(b) ruling and specifically asked if trial counsel 

had any questions about the ruling. Trial counsel responded 

that they did not. And yet a mere seven questions later, trial 

counsel again asked a question that led to a sustained objection for violating the military judge’s M.R.E. 404(b) ruling. 

An additional three questions later, trial counsel’s question 

led to yet another sustained objection on M.R.E. 404(b) 

grounds. 

Third, the nature of the evidence, which was elicited in 

violation of the military judge’s ruling, is of particular concern.2 For example, trial counsel elicited testimony that Appellant often watched pornography, broke into a friend’s 

house in search of his wife, hit his wife in the head with a 

full can of beer, and held his wife down by putting both his 

hands around her throat. 

Testimony about the last incident—where Appellant allegedly put his hands around his wife’s throat while holding 

her down—prompted the military judge to convene one of 

the sixteen Article 39(a), UCMJ, sessions. After the military 

judge explained that the Government needed to either 

charge the incidents or provide M.R.E. 404(b) notice, trial 

counsel complained that it was “unfair” for the Government 

to be required to provide notice of “each and every act” of the 

Appellant.3 Seemingly unmoved by this complaint, the mili-

 2 The improper introduction of character evidence at a courtmartial with panel members is of “particularly grave concern.” 

United States v. Hornback, 73 M.J. 155, 164 (C.A.A.F. 2014) 

(Ohlson, J., with whom Baker, C.J., joined, dissenting). “Character 

evidence is particular anathema to U.S. notions of fair trial, running the risk as it does that members may be swayed to convict 

not on the basis of evidence, but because the defendant is a bad 

person deserving of punishment.” Id. at 162 (Baker, C.J., with 

whom Ohlson, J., joined, dissenting). 

3 [ATC:] We have to—within each specification we now have 

to—we were supposed to provide 404(b) notice for everything that 

happened within a particular assault incident? 

.... 

[ATC:] It seems – it seems a little unfair .... 

MJ: Unfair to who[m]? 

ATC: Unfair to the government .... 
United States v. Short, No. 17-0187/AR 

Judge OHLSON, Dissenting 

3 

tary judge announced that he would provide one more curative instruction and that this was the “last warning” to the 

Government. And yet, trial counsel continued to ask questions that elicited testimony which resulted in the military 

judge sustaining seven more objections on M.R.E. 404(b) 

grounds. 

In citing this conduct by trial counsel, I do not seek to 

impugn their motives or their ethics. It appears from the 

record that inexperience rather than guile was the genesis of 

the repeated problems that arose in this case.4 But as this 

Court has noted, “In analyzing allegations of prosecutorial 

misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” United States v. Rodriguez-Rivera, 63 M.J. 372, 

378 (C.A.A.F. 2006) (citation omitted) (internal quotation 

marks omitted). 

Fourth, the majority states that the proper focus of review is whether the military judge abused his discretion by 

not granting Appellant’s motions for a mistrial rather than 

the granted issue of whether there was prosecutorial misconduct. However, in my view, when faced with pervasive 

prosecutorial misconduct as in this case, an appellant should 

not be penalized by the imposition of a more stringent 

standard of review simply because the trial defense counsel 

appropriately made a motion for a mistrial. Rather, the 

proper standard should be as follows: “[P]rosecutorial misconduct ... will require reversal when the trial counsel’s [actions], taken as a whole, were so damaging that we cannot 

be confident that the members convicted the appellant on 

 

MJ: That is one of the burdens of being the government. 

4 The best cure for errors stemming from inexperience is supervision. As then Chief Judge Charles N. Pede, now the Judge 

Advocate General of the Army, noted, “[s]upervision of the trial 

process is elemental to our role as judge advocates .... [C]hiefs of 

justice ... must engage their subordinate counsel energetically and 

appropriately throughout the trial process.” United States v. Mack, 

No. ARMY 20120247, 2013 CCA LEXIS 1016, at *5–6, 2013 WL 

6528518, at *2 (A. Ct. Crim. App. Dec. 9, 2013) (Pede, C.J., concurring) (unpublished) (emphasis added). 
United States v. Short, No. 17-0187/AR 

Judge OHLSON, Dissenting 

4 

the basis of the evidence alone.” United States v. Fletcher, 62 

M.J. 175, 184 (C.A.A.F. 2005). 

In applying this standard to the instant case, I concede 

that the military judge repeatedly gave limiting instructions 

to the panel members. However, there is a point at which 

prosecutorial misconduct is so pervasive that instructions 

from the bench are insufficient to counter the prejudicial effect to the appellant. In other words, at some juncture multiple “limiting instructions” can no longer be considered “curative instructions.” That point was surpassed in this case. 

See United States v. Crutchfield, 26 F.3d 1098, 1103 (11th 

Cir. 1994) (“When [prosecutorial misconduct] permeate[s] a 

trial to such a degree as occurred in this case, we do not believe that instructions from the bench are sufficient to offset 

the certain prejudicial effect suffered by the accused.”). 

Moreover, our standard assumption about the effect of 

instructions on panel members is not without borders. As 

this Court has stated, “We presume, absent contrary indications, that the panel followed the military judge’s instructions.” United States v. Sewell, 76 M.J. 14, 19 (C.A.A.F. 

2017) (emphasis added). In the instant case, contrary indicators are clearly present. Specifically, the members found 

Appellant guilty beyond a reasonable doubt of the assault 

consummated by a battery offense even though the military 

judge concluded during the members’ deliberation that there 

was no evidence in the record to support the element of battery.5 This verdict serves as substantial evidence that the 

members did not follow the military judge’s instructions and 

that their decision to convict Appellant was based on something other than the admitted evidence. 

And finally, the strength of the Government’s case was 

not particularly compelling. The prosecution relied entirely 

 5 This was not a matter of reasonable minds differing on the 

weight of the evidence. A military judge must view the evidence in 

the light most favorable to the prosecution and can grant a Rule 

for Courts-Martial (R.C.M.) 917 motion “only in the absence of 

some evidence which, together with all reasonable inferences and 

applicable presumptions, could reasonably tend to establish every 

essential element” of the charged offense. R.C.M. 917(d) (emphasis 

added). 
United States v. Short, No. 17-0187/AR 

Judge OHLSON, Dissenting 

5 

on the testimony of the victim and her two friends. There 

were no prosecution exhibits, no confessions or admissions 

by Appellant, no physical evidence, and no text messages or 

other electronic evidence. 

Because of the frequency and severity of the 

prosecutorial misconduct, the insufficiency of the corrective 

actions, and the minimal weight of the admitted evidence, I 

cannot be confident that the members convicted Appellant 

based on the evidence alone. Therefore, I would find 

prejudice,6 reverse the findings and sentence, and authorize 

a new proceeding. 

 6 Prejudice exists when an appellant is convicted of even a single offense which is tainted by prosecutorial misconduct. Cf.

Hornback, 73 M.J. at 160 (“[P]rosecutorial misconduct by a trial 

counsel will require reversal when the trial counsel’s [actions], 

taken as a whole, were so damaging that we cannot be confident 

that the members convicted the appellant on the basis of the evidence alone.” (internal quotation marks omitted) (citation omitted)). Any leniency in the punishment imposed for that conviction 

is irrelevant to the determination of whether that prejudice was 

manifest. Even if it were relevant, a bad-conduct discharge is a 

severe punishment and “should not be viewed lightly simply on 

account of a minimum amount of forfeitures or confinement 

awarded in conjunction with it.” United States v. Dukes, 5 M.J. 71, 

74 (C.M.A. 1978); see also Dep’t of the Army, Pam. 27-9, Legal 

Services, Military Judges’ Benchbook ch. 2, § VI, para. 2-6-10 

(2017) (“A bad-conduct discharge is a severe punishment .... Such 

a discharge deprives one of substantially all benefits administered 

by the Department of Veterans Affairs and the Army establishment.”). A sentence of solely a punitive discharge is not indicative 

of a lack of prejudice. Dukes, 5 M.J. at 74.